Legality, Constitutionality, and Civil Disobedience

I recently listened to an interview involving retired judge, Andrew Napolitano concerning the Edward Snowden issue. Judge Napolitano was asked where he came down on the topic.

He drew a distinction between legality and constitutionality.  He noted that Edward Snowden had taken an oath of secrecy with respect to his job and, therefore, he was legally bound to keep such secrets. However, on the other hand, Edward Snowden also had a duty to uphold the U.S. Constitution.

According to the judge, everything boiled down to which duty had priority. Judge Napolitano indicated that it was a no-brainer -- the higher duty was to the Constitution, and he considered Edward Snowden to be a hero for leaking the information concerning the covert activities of the NSA ... incidentally have you heard about the cloud service that permits a person to store all of his or her personal data completely free that is being run by the NSA ... you don't have to do anything ... everything is done for you.

Judge Napolitano went on to point out that Congress and the Executive Office can issue all kinds of directives that purport to be legal actions. Nonetheless, the purpose of the Constitution is to place constraints on what can considered to be appropriately legal -- that is, what is consistent with the Constitution.

While I agree with the general point made by Judge Napolitano, it harbors a deep-rooted problem. More specifically, his position seems to presuppose that the meaning and scope of the Constitution is clear-cut and can be agreed upon by all, and this, sadly, is just not the case.

Many of the decisions handed down by the Supreme Court give expression to a 5-4 split. This means that four justices disagree with the majority concerning the meaning of the Constitution, and, as well, one should not forget that just because five individuals are agreed, generally speaking, with the purported meaning of the Constitution in a given case, this doesn't mean that they are correct ... only that they are agreed.

Waiting for the truth concerning the meaning of the Constitution is a lot like Samuel Beckett's 1953 play: 'Waiting for Godot' in which two characters while away their time engaged in various musings as they wait in vain for someone to show up. Beckett's play was labeled as being 'absurdist' in character ... a characterization that oftentimes is quite applicable to what takes place with respect to Supreme Court deliberations and decisions.

Then, of course, there is the whole matter of whether, or not, the Supreme Court jurists even ought to be doing what they are so busily engaged in doing since the Constitution really doesn't clearly stipulate what the role of the Supreme Court should be. While the power of the Supreme Court "shall extend to all cases in law and equity, arising under the Constitution, the laws of the United States, and treaties", as well as to a variety of other situations (such as disputes between states or between a state and citizens of another state), nothing is said in the Constitution about the precise nature of that power which was being given to the Supreme Court through the Constitution or how that power should be exercised.

Judge John Marshall took the bull by the horns and laid out a role for the judiciary in the Marbury v. Madison case of 1803. However, if one critically examines the logic of that decision -- and, I have done this, to a degree, in my book: 'The Unfinished Revolution: The Battle for America's Soul' -- a 660 page book that one can purchase for $3.00 through 'BillWhitehoue.Com) -- one comes away with a lot more questions than answers. In my opinion, Marshall's decision in the Marbury v. Madison case is deeply flawed and the problems inherent in his decision have compromised and corrupted the activities and decisions of the Supreme Court ever since ... resulting in many, many difficulties for the American people, if not the world.

Not that I agree with the manner in which the Constitution lays things out with respect to three separate but equal branches of federal government -- for I feel, as the aforementioned book delineates in some detail, that the whole constitutional exercise that began in 1787 in Philadelphia was a concerted attack on the sovereignty and natural law rights of human beings -- nevertheless, one might observe in passing that it would appear to be quite difficult to claim that three branches of government are equal, if one of them -- namely, the Judiciary -- gets to say what is, and what is, not Constitutional.

Moreover, by the time that the Supreme Court gets around to dealing with this or that Constitutional issue, oftentimes during the interim period of 'waiting for Godot', a great deal of damage has accrued -- damage that adversely affects millions of people around the world and not just in the United States. To say, in response to such difficulties, that the U.S. constitutional system might not be perfect, but it is better than all the rest is an exercise that dissembles the truth and seeks to dissuade people away from understanding that "being better" in the foregoing sense is simply not good enough.

If anyone reading this should wonder where I stand on things constitutionally speaking, I believe there are only a few good things in the U.S. Constitution. These are: the Preamble, Article IV, Section 4 of that document (which 'guarantees' a republican form of government to the states), the Bill of Rights (the first 10 Amendments), and portions of the 13th and 14th Amendments -- as long as these are not used to empower corporations and treat them as persons.

One way that might help to improve things -- i.e., to try to make the best of a bad constitutional situation -- would be to pass an amendment concerning a right to civil disobedience whose scope would be determined by the people rather than either the states or the federal government. This could be done through a grand-jury style format, and the decisions of that body would not be reviewable by any other agency of government (local, state, or federal).

Edward Snowden's action -- along with the actions of many other whistleblowers -- should not be considered from the point of view of legalities or constitutionality -- and, here, I part company with Judge Napolitano. Those acts should be considered from the perspective of the inherent sovereignty of individuals being judged against the sovereignty of their peers and what the latter individuals are prepared to accept as viable degrees of freedom concerning acts of conscience in the context of everyone's right to basic sovereignty.

We don't have to wait for Godot. Justice is conceivable as a function of what people -- independent of government -- are capable of achieving. This goes to the very heart of the 9th and 10th Amendments ... important issues that the judiciary rushes by like a scared kid whistling past the cemetery in the darkness of a stormy night.

Whistleblower Realities

The Issue

Some people claim that whistleblowers are individuals who are concerned about: fairness, integrity, justice, honesty, transparency, society, rights, democracy, truth, and sovereignty for the people. Government authorities, however, argue that whistleblowers are criminal, selfish, treasonous, ego-driven, publicity seeking troublemakers who are jeopardizing national security as well as violating the principle that democracy is best served when secrets are preserved and the people are kept ignorant about what is being done through the process of governing. Where does the truth lie?

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The Grand Deception

The American form of government is supposed to be rooted in republican principles. Such principles were derived from, and shaped by, a moral philosophy that was promoted during the Enlightenment. At the heart of this Enlightenment philosophy is a belief which requires the process of government to be run as a moral enterprise. In other words, rather than governement officials acting in ways that are arbitrary and intended to serve the interests of the government rather than the interests of citizens, republicanism indicated that government officials must abide by certain moral principles such as: honesty, objectivity, fairness, truth, nobility, keeping promises, charitability, transparency, tolerance, service to the public, and not being a judge in one's own affair.

The foregoing outline of republicanism is integral to the United States Constitution. Indeed, the principle of republican moral philsophy was enshrined in the American form of government through Article IV, Section 4 of the Constitutiion. That portion of the document stipulates that the federal government guarantees the states, and, therefore, the people, a republican form of government ... a form of government which does not violate the moral principles of republicanism. 

To operate in accordance with Article IV, Section 4 of the U.S. Constitution, a government cannot be a judge in its own affair. Among other things this means that governments (whether federal or state) do not get to be the final arbiters of what is in the best interests of democracy or promoting the sovereignty of the people, and this includes the Supreme Court (both federal and state) since the judiciary constitutes one of the three branches of centralized government.

For several hundred years (in fact from practically the beginning of the founding of the American Republic), both federal and state governments have sought to render Article IV, Section 4 of the Constitution relatively invisible and irrelevant to the process of governance. And, yet -- and this is precisely why Article IV, Section 4 has been rendered obscure by the federal and state governments -- this portion of the Constituion is, probably, the most fundamental principle set forth in that document becuase it was intended to allay the fears of the people that government would become tyrannical, but through a guaranteed, Constitutionally enshrined promise, the people would find assurance that the process of government would not be oppressive or tyrannical and, instead, would operate in accordance with the moral requirements of republicanism.

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Bait and Switch

Centralized government in the United States has been conducting a sleight-of-hand routine before the American public from almost the very beginning of the founding of our experiment in democracy. However, this form of governmental prestidigitaton has been picking up steam over the last one hundred years as the sorcerers of governance seek to induce the public to believe that protecting 'national interests' or 'national security' is the same thing as protecting the sovereignty of the citizens, and this illusion is assisted by misdirecting people's attention away from the moral requirements of republicanism -- which, in the present case, means that the government does not have the right to determine what is, and is not, in the best interests of citizen sovereignty. Invoking the terms: "national interests" and "state security" is about protecting governments, not the people, although governments have done their best to try to deceive people and induce people to believe that there is no difference between "national interests" and citizen sovereignty.

Governments don't like whistleblowers because, in essence, such individuals remind us all that sovereignty is the right of the people and is not derived from, or a gift, of the government. Article IV, Section 4 of the Constitution indicates that whistleblowers have the right to be heard by the people beyond the horizons of a legal process which may serve the interests of central government but does not necessarily serve the sovereign interests of citizens.

Whistleblowers perform a public service to the cause of citizen sovereignty, often at great personal risk. Article IV, Section 4 of the U.S. Constitution not only encourages such selfless acts, but guarantees that the government must let such acts take place quite indepedently of what the government believes to be the case and quite free of criminal prosecution. Indeed, every prosecution of a whistleblower constitutes a violation of Article IV, Section 4 of the Constitution and, as such, represents an unconstitutional act on the part of the government. 

Article IV, Section 4 of the Constitution is the 'supreme law of the land'. It takes precedence over every other aspect of the Constitution because it is the only guarantee which appears in that document. To seek to deny the requirements of Article IV, Section 4 of the Constitution not only renders the rest of the Constitution meaningless, but it seeks to suppress the principles of republican moral philosophy in which the American form of democracy is supposedly rooted.